Gay Marriage And The Justices: Day Two

Today, in the second half of the marriage equality twin-bill before the Supreme Court, the Defense Of Marriage Act gets its day in front of the be-robed ladies and gentlemen, and we might at last be putting the 1996 presidential campaign, and the influence of political Svengali Dick Morris, behind us. We may see the end of the era of triangulation. Yesterday, it became clear to most observers that the Court was fully prepared to punt on the case involving California's Proposition 8, letting the issue devolve back to the states. That is not an option here. Either DOMA's denial of over 1000 federal benefits and protections available to straight couples is constitutional or it is not. There are a number of reasons why it may not be, most of them involving such fundamental constitutional principles as equal protection of the laws, the full faith and credit clause, and the enumerated powers of the Congress. Politically, however, the law is both preposterous and obsolete.

It is a law born of casual expedience. It arose from the blind sex panic of conservative congresscritters that erupted when Hawaii's Supreme Court demanded that Hawaii show a compelling state interest in banning same-sex marriage. It was introduced in the Congress by Rep. Bob Barr of Georgia, one of the unquestioned stars of what later would become the pursuit of the presidential penis around the Beltway. (Barr wrote a book advocating impeachment long before anyone ever heard of Monica Lewinsky.) In addition to being a proud demonstration of bigotry, DOMA also was a deliberate bear-trap set for Democratic politicians, which definitely included President Bill Clinton. It passed both houses of Congress overwhelmingly. with quite a few Democrats deploring the law prior to voting for it. Clinton signed it on September 22, just as the homestretch of his walkover campaign against Republican Bob Dole was hitting the homestretch. It was exactly one month to the day after he'd also signed the more-punitive-than-it-had-to-be welfare reform act that essentially ended the federal welfare program. Both acts bore the signature of Morris, the dark genius of triangulation.

Clinton campaign consultant Dick Morris, who was not at the meeting, had told the president that adding a third veto to the two Clinton had issued to earlier welfare plans could be politically catastrophic, according to administration officials familiar with his advice. Morris and some other advisers were worried that a veto would put Clinton on the opposite side of what polls say is overwhelming public sentiment for revamping welfare, would open a door for Dole, and would contradict Clinton's methodical efforts over the past year to show the electorate that he is a centrist who shares middle-class values about work and responsibility.

It is hard to imagine that vetoing either act would have been as politically catastrophic as Morris and others had convinced the president they would have been. Dole was a gold-watch candidate at best, and some people who'd been Clinton's advisers at the time believe he could have vetoed DOMA without breaking a sweat. The fact is, he didn't want to do so.

Paul Yandura, who worked in the White House gay and lesbian liaison's office at the time, puts Clinton's decision to support DOMA in stark terms. ''He could have said, 'Look, I'm just going to veto this.' If you look at the polling around that time, he was way ahead in the polls. And so, could he have taken a five-point dip? Sure. Were we worth it? I guess they decided that we weren't.''

That calculation reaches its final limits in front of the Court today. Clinton himself has disowned it, The current administration essentially has orphaned the law, refusing to enforce it before the courts. (It's the House Republican leadership who is arguing in favor of DOMA today. Yeah, and the worst result of the sequester is that we don't have the money to spend on the White House tours.) It's taken a proper beating in the lower courts and, of course, the political calculus on the issue has been turned completely on its head. In fact, the very facts of the case take marriage equality as a fait accompli, and the denial of benefits as a violation of the legal status quo.

The plaintiff is Edith Windsor, who married Thea Spyer, her partner of more than 40 years, in Canada in 2007. Both were residents of New York. When Spyer died in 2009, she left her estate to Windsor. Because their marriage was not recognized, Windsor paid a tax bill of more than $360,000. She has sued for a refund. "It's really unfair, unconstitutional and a violation of equal protection for the federal government for the first time in our nation's history to have two classes of married couples," said Roberta A. Kaplan, Windsor's attorney.

Moreover, if, as seems likely, the Court intends to kick the Proposition 8 case back to the states, then it would be intellectually incoherent to ket stand provisions of a law aimed at essentially federalizing one definition of marriage. We may finally be in a position to put the 1990's behind us. I may never have to type the names "Bob Barr" or "Dick Morris" again.

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